Bodily Injury Exclusion in Real Estate Agents E&O Policy Bars Coverage for Car Accident Claim | Wiley Rein LLP

The United States District Court for the District of Connecticut, applying Connecticut law, has held that a bodily injury exclusion barred coverage for defense and indemnity of a real estate agency’s employee for a claim stemming from injuries suffered in a car accident involving the employee. Yuzvik v. United States Liab. Ins. Co.2022 WL 1605539 (D. Conn. May 20, 2022).

A real estate agency was insured under a Real Estate Agents Error and Omission Policy. While driving a truck in the course of his work, one of the agency’s employees struck a pedestrian. The pedestrian suffered numerous physical injuries and sued the employee and the agency. The agency’s insurer denied coverage for the lawsuit based on the policy’s bodily injury exclusion, which provided that “[t]his Policy does not apply to, and the Company will not defend or pay for, any Claim arising out of, directly or indirectly resulting from, based upon or in any way involving any actual or alleged[] bodily injury, emotional distress, mental anguish, humiliation, pain, suffering, sickness, disease or death of any person. ”

The parties ultimately settled the bodily injury lawsuit, and, as part of the agreement, the agency assigned its rights under the insurance policy to the injured pedestrian. The pedestrian then sued the insurer, arguing that it should have provided defense and indemnity coverage to the employee and the real estate agency.

On cross-motions for summary judgment, the court sided with the insurer and held that the bodily injury exclusion precluded coverage under the policy. The court noted that the exclusion was unambiguous and that the underlying claim’s allegations clearly stemmed from the pedestrian’s bodily injuries. The court emphasized that, according to the suit, the employee “suddenly and violently struck [the pedestrian] . . . with the pickup truck. . . cause[ing] [the pedestrian] to be violently thrown in the air and to the ground and to sustain the severe, painful and permanent injuries detailed herein. ” The court also noted that all of the claimant’s damages “were products of the bodily injuries he sustained when [the employee] struck him with his pickup truck. ”

The court rejected the claimant’s contention that the policy was “incomprehensible and filled with inconsistencies between the coverage and the bodily injury exclusion.” The court determined that the argument failed because it “misapprehends the purpose of an exclusion clause, which is to ‘eliminate [] coverage where, were it not for the exclusion, coverage would have existed, ”and because the exclusion was“ perfectly sensible within the context of the policy’s coverage for and definition of ‘personal injury,’ focusing on certain types of claims that may arise in the context of rendering professional real estate services. ”

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